[Congressional Record Volume 163, Number 183 (Thursday, November 9, 2017)]
[Senate]
[Pages S7164-S7166]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                REDUCING DHS ACQUISITION COST GROWTH ACT

  Mr. McCONNELL. Mr. President, I ask unanimous consent that the Senate 
proceed to the immediate consideration of Calendar No. 234, S. 906.
  The PRESIDING OFFICER. The clerk will report the bill by title.
  The legislative clerk read as follows:

       A bill (S. 906) to amend the Homeland Security Act of 2002 
     to provide for congressional notification regarding major 
     acquisition program breaches, and for other purposes.

  There being no objection, the Senate proceeded to consider the bill, 
which had been reported from the Committee on Homeland Security and 
Governmental Affairs, with an amendment, as follows:
  (The part of the bill intended to be inserted is shown in italics.)

                                 S. 906

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Reducing DHS Acquisition 
     Cost Growth Act''.

     SEC. 2. CONGRESSIONAL NOTIFICATION FOR MAJOR ACQUISITION 
                   PROGRAMS.

       (a) In General.--Subtitle D of title VIII of the Homeland 
     Security Act of 2002 (6 U.S.C. 391 et seq.) is amended by 
     adding at the end the following:

     ``SEC. 836. CONGRESSIONAL NOTIFICATION AND OTHER REQUIREMENTS 
                   FOR MAJOR ACQUISITION PROGRAM BREACH.

       ``(a) Definitions.--In this section:
       ``(1) Acquisition.--The term `acquisition' has the meaning 
     given the term in section 131 of title 41, United States 
     Code.
       ``(2) Acquisition program.--The term `acquisition program' 
     means the process by which the Department acquires, with any 
     appropriated amounts, by contract for purchase or lease, 
     property or services (including construction) that support 
     the missions and goals of the Department.
       ``(3) Acquisition program baseline.--The term `acquisition 
     program baseline', with respect to an acquisition program, 
     means a summary of the cost, schedule, and performance 
     parameters, expressed in standard, measurable, quantitative 
     terms, which shall be met in order to accomplish the goals of 
     the program.
       ``(4) Appropriate committees of congress.--The term 
     `appropriate committees of Congress' has the meaning given 
     the term in section 226(a).
       ``(5) Best practices.--The term `best practices', with 
     respect to acquisition, means a knowledge-based approach to 
     capability development that includes--
       ``(A) identifying and validating needs;
       ``(B) assessing alternatives to select the most appropriate 
     solution;
       ``(C) clearly establishing well-defined requirements;
       ``(D) developing realistic cost assessments and schedules;
       ``(E) securing stable funding that matches resources to 
     requirements;
       ``(F) demonstrating technology, design, and manufacturing 
     maturity;
       ``(G) using milestones and exit criteria or specific 
     accomplishments that demonstrate progress;
       ``(H) adopting and executing standardized processes with 
     known success across programs;
       ``(I) establishing an adequate workforce that is qualified 
     and sufficient to perform necessary functions; and
       ``(J) integrating the capabilities described in 
     subparagraphs (A) through (I) into the mission and business 
     operations of the Department.
       ``(6) Breach.--The term `breach', with respect to a major 
     acquisition program, means a failure to meet any cost, 
     schedule, or performance threshold specified in the most 
     recently approved acquisition program baseline.
       ``(7) Component acquisition executive.--The term `Component 
     Acquisition Executive' means the senior acquisition official 
     within a component who is designated in writing by the Under 
     Secretary for Management, in consultation with the component 
     head, with authority and responsibility for leading a process 
     and staff to provide acquisition and program management 
     oversight, policy, and guidance to ensure that statutory, 
     regulatory, and higher level policy requirements are 
     fulfilled, including compliance with Federal law, the Federal 
     Acquisition Regulation, and Department acquisition management 
     directives established by the Under Secretary for Management.
       ``(8) Major acquisition program.--The term `major 
     acquisition program' means an acquisition program of the 
     Department that

[[Page S7165]]

     is estimated by the Secretary to require an eventual total 
     expenditure of at least $300,000,000 (based on fiscal year 
     2017 constant dollars) over the life cycle cost of the 
     program.
       ``(b) Requirements Within Department in Event of Breach.--
       ``(1) Notifications.--
       ``(A) Notification of breach.--If a breach occurs in a 
     major acquisition program, the program manager for the 
     program shall notify the Component Acquisition Executive for 
     the program, the head of the component concerned, the 
     Executive Director of the Program Accountability and Risk 
     Management division, the Under Secretary for Management, and 
     the Deputy Secretary not later than 30 calendar days after 
     the date on which the breach is identified.
       ``(B) Notification to secretary.--If a breach occurs in a 
     major acquisition program and the breach results in a cost 
     overrun greater than 15 percent, a schedule delay greater 
     than 180 days, or a failure to meet any of the performance 
     thresholds from the cost, schedule, or performance parameters 
     specified in the most recently approved acquisition program 
     baseline for the program, the Component Acquisition Executive 
     for the program shall notify the Secretary and the Inspector 
     General of the Department not later than 5 business days 
     after the date on which the Component Acquisition Executive 
     for the program, the head of the component concerned, the 
     Executive Director of the Program Accountability and Risk 
     Management Division, the Under Secretary for Management, and 
     the Deputy Secretary are notified of the breach under 
     subparagraph (A).
       ``(2) Remediation plan and root cause analysis.--
       ``(A) In general.--If a breach occurs in a major 
     acquisition program, the program manager for the program 
     shall submit in writing to the head of the component 
     concerned, the Executive Director of the Program 
     Accountability and Risk Management division, and the Under 
     Secretary for Management, at a date established by the Under 
     Secretary for Management, a remediation plan and root cause 
     analysis relating to the breach and program.
       ``(B) Remediation plan.--The remediation plan required 
     under subparagraph (A) shall--
       ``(i) explain the circumstances of the breach at issue;
       ``(ii) provide prior cost estimating information;
       ``(iii) include a root cause analysis that determines the 
     underlying cause or causes of shortcomings in cost, schedule, 
     or performance of the major acquisition program with respect 
     to which the breach has occurred, including the role, if any, 
     of--

       ``(I) unrealistic performance expectations;
       ``(II) unrealistic baseline estimates for cost or schedule 
     or changes in program requirements;
       ``(III) immature technologies or excessive manufacturing or 
     integration risk;
       ``(IV) unanticipated design, engineering, manufacturing, or 
     technology integration issues arising during program 
     performance;
       ``(V) changes to the scope of the program;
       ``(VI) inadequate program funding or changes in planned 
     out-year funding from one 5-year funding plan to the next 5-
     year funding plan as outlined in the Future Years Homeland 
     Security Program required under section 874;
       ``(VII) legislative, legal, or regulatory changes; or
       ``(VIII) inadequate program management personnel, including 
     lack of sufficient number of staff, training, credentials, 
     certifications, or use of best practices;

       ``(iv) propose corrective action to address cost growth, 
     schedule delays, or performance issues;
       ``(v) explain the rationale for why a proposed corrective 
     action is recommended; and
       ``(vi) in coordination with the Component Acquisition 
     Executive for the program, discuss all options considered, 
     including--

       ``(I) the estimated impact on cost, schedule, or 
     performance of the program if no changes are made to current 
     requirements;
       ``(II) the estimated cost of the program if requirements 
     are modified; and
       ``(III) the extent to which funding from other programs 
     will need to be reduced to cover the cost growth of the 
     program.

       ``(3) Review of corrective actions.--
       ``(A) In general.--The Under Secretary for Management--
       ``(i) shall review each remediation plan required under 
     paragraph (2); and
       ``(ii) not later than 30 days after submission of a 
     remediation plan under paragraph (2), may approve the plan or 
     provide an alternative proposed corrective action.
       ``(B) Submission to congress.--Not later than 30 days after 
     the date on which the Under Secretary for Management 
     completes a review of a remediation plan under subparagraph 
     (A), the Under Secretary for Management shall submit to the 
     appropriate committees of Congress--
       ``(i) a copy of the remediation plan; and
       ``(ii) a statement describing the corrective action or 
     actions that have occurred pursuant to paragraph (2)(B)(iv) 
     for the major acquisition program at issue, with a 
     justification for each action.
       ``(c) Requirements Relating to Congressional Notification 
     if Breach Occurs.--
       ``(1) Notification to congress.--If a notification to the 
     Secretary is made under subsection (b)(1)(B) relating to a 
     breach in a major acquisition program, the Under Secretary 
     for Management shall notify the appropriate committees of 
     Congress of the breach in the next quarterly Comprehensive 
     Acquisition Status Report, as required in the matter under 
     the heading `Office of the Under Secretary for Management' in 
     title I of division F of the Consolidated Appropriations Act 
     of 2016 (Public Law 114-113; 129 Stat. 2493), after receipt 
     by the Under Secretary for Management of notification under 
     that subsection.
       ``(2) Significant variances in costs or schedule.--If a 
     likely cost overrun is greater than 20 percent or a likely 
     delay is greater than 12 months from the costs and schedule 
     specified in the acquisition program baseline for a major 
     acquisition program, the Under Secretary for Management shall 
     include in the notification required in paragraph (1) a 
     written certification, with supporting explanation, that--
       ``(A) the program is essential to the accomplishment of the 
     mission of the Department;
       ``(B) there are no alternatives to the capability or asset 
     provided by the program that will provide equal or greater 
     capability in a more cost-effective and timely manner;
       ``(C) the new acquisition schedule and estimates for total 
     acquisition cost are reasonable; and
       ``(D) the management structure for the program is adequate 
     to manage and control cost, schedule, and performance.''.
       (b) Clerical Amendment.--The table of contents in section 
     1(b) of the Homeland Security Act of 2002 (Public Law 107-
     296; 116 Stat. 2135) is amended by inserting after the item 
     relating to section 835 the following:

``Sec. 836. Congressional notification and other requirements for major 
              acquisition program breach.''.

     SEC. 3. REPORT ON BID PROTESTS.

       (a) Definition.--In this section, the term ``Department'' 
     means the Department of Homeland Security.
       (b) Study and Report.--Not later than 1 year after the date 
     of enactment of this Act, the Inspector General of the 
     Department shall conduct a study and submit to the Committee 
     on Homeland Security and Governmental Affairs of the Senate 
     and the Committee on Homeland Security of the House of 
     Representatives a report on the prevalence and impact of bid 
     protests on the acquisition process of the Department, in 
     particular bid protests filed with the Government 
     Accountability Office and the United States Court of Federal 
     Claims.
       (c) Contents.--The report required under subsection (b) 
     shall include--
       (1) with respect to contracts with the Department--
       (A) trends in the number of bid protests filed with Federal 
     agencies, the Government Accountability Office, and Federal 
     courts, the effectiveness of each forum for contracts and 
     task or delivery orders, and the rate of those bid protests 
     compared to contract obligations and the number of contracts;
       (B) an analysis of bid protests filed by incumbent 
     contractors, including the rate at which those contractors 
     are awarded bridge contracts or contract extensions over the 
     period during which the bid protest remains unresolved;
       (C) a comparison of the number of bid protests and the 
     outcome of bid protests for--
       (i) awards of contracts compared to awards of task or 
     delivery orders;
       (ii) contracts or orders primarily for products compared to 
     contracts or orders primarily for services;
       (iii) protests filed pre-award to challenge the 
     solicitation compared to those filed post-award;
       (iv) contracts or awards with single protestors compared to 
     multiple protestors; and
       (v) contracts with single awards compared to multiple award 
     contracts;
       (D) a description of trends in the number of bid protests 
     filed as a percentage of contracts and as a percentage of 
     task or delivery orders by the value of the contract or order 
     with respect to--
       (i) contracts valued at more than $300,000,000;
       (ii) contracts valued at not less than $50,000,000 and not 
     more than $300,000,000;
       (iii) contracts valued at not less than $10,000,000 and not 
     more than $50,000,000; and
       (iv) contracts valued at less than $10,000,000;
       (E) an assessment of the cost and schedule impact of 
     successful and unsuccessful bid protests, as well as 
     delineation of litigation costs, filed on major acquisitions 
     with more than $100,000,000 in annual expenditures or 
     $300,000,000 in lifecycle costs;
       (F) an analysis of how often bid protestors are awarded the 
     contract that was the subject of the bid protest;
       (G) a summary of the results of bid protests in which the 
     contracting Federal agencies took unilateral corrective 
     action, including the average time for remedial action to be 
     completed;
       (H) the time it takes Federal agencies to implement 
     corrective actions after a ruling or decision with respect to 
     a bid protest, and the percentage of those corrective actions 
     that are subsequently protested, including the outcome of any 
     subsequent bid protest;
       (I) an analysis of those contracts with respect to which a 
     company files a bid protest and later files a subsequent bid 
     protest;
       (J) an analysis of the time spent at each phase of the 
     procurement process attempting to prevent a bid protest, 
     addressing a bid protest, or taking corrective action in 
     response to a bid protest, including the efficacy of any 
     actions attempted to prevent the occurrence of a protest; and
       (K) with respect to a company bidding on contracts or task 
     or delivery orders, the extent to and manner in which the bid 
     protest process affects or may affect the decision to offer a 
     bid or

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     proposal on single award or multiple award contracts when the 
     company is the incumbent or non-incumbent contractor; and
       (2) any recommendations by the Inspector General of the 
     Department relating to the study conducted under this 
     section.

  Mr. McCONNELL. Mr. President, I further ask unanimous consent that 
the committee-reported amendment be withdrawn, the McCaskill substitute 
amendment, which is at the desk, be considered and agreed to, the bill, 
as amended, be considered read a third time and passed, and the motion 
to reconsider be considered made and laid upon the table with no 
intervening action or debate.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The committee-reported amendment was withdrawn.
  The amendment (No. 1583) in the nature of a substitute was agreed to.
  (The amendment is printed in today's Record under ``Text of 
Amendments.'')
  The bill (S. 906), as amended, was ordered to be engrossed for a 
third reading, was read the third time, and passed.

                          ____________________